The Hindu editorial 15 July 2021.

 

Making welfare conditional is a stamp of coercion.

On Sunday, the government

of Uttar Pradesh released a

“Population Policy” in

which it stated its intention to

bring the gross fertility rate in the

State down from the existing 2.7 to

2.1 by 2026. To achieve this, the go-

vernment says it will consider the

enactment of a new piece of legis-

lation. One such law that might be

on the anvil is an ominous propo-

sal released just days earlier by the

State’s Law Commission

(https://bit.ly/3xGH2TF).

Incentives and disincentives

This draft law, titled the Uttar Pra-

desh Population (Control, Stabili-

sation and Welfare) Bill, 2021,

seeks to provide not only a series

of incentives to families that adh-

ere to a two­child norm, but also

intends on disentitling families

that breach the norm from bene-

fits and subsidies. These recom-

mendations are rooted in a culture

of coercion. They are also steeped

in myth. Experiences from across

the world demonstrate that laws of

this kind simply do not work. They

invariably instil an attitude of dis-

crimination, with a burden im-

posed disparately on the most vul-

nerable groups in society.

The draft Bill echoes the U.P. go-

vernment’s new policy in claiming

that the State’s ecological and eco-

nomic resources are limited. Ac-

cording to it, unless population

growth is regulated, the State will

be unable to guarantee the provi-

sion of basic rights to all citizens. It

also invokes some of the now-

usual buzzwords: sustainable de-

velopment, it says, cannot be

achieved without government­im-

posed birth control. 

To these ends, the draft postu-

lates an array of measures. It pro-

mises public servants who under-

go sterilisation and adopt a

two­child norm several benefits.

These include two increments

during their service, subsidy to-

wards the purchase of a house,

maternity, or paternity leave, with

full salary and allowances, as the

case may be, for up to 12 months,

and free health care and insurance

coverage for the spouse.

This is as far as the “incentives”

go. The draft Bill also contains a

list of punishments. It terms these

euphemistically as “disincen-

tives”. A person who breaches the

two­child norm will be debarred

from securing the benefit of any

government­sponsored welfare

scheme and will be disqualified

from applying to any State govern-

ment job. Existing government

employees who infringe the rule

will be denied the benefit of pro-

motion. And last, transgressing in-

dividuals will be prohibited from

contesting elections to local auth-

orities and bodies.

It is worth pondering over

whether regulation of population

is necessary at all. But assuming

such regulation is a legitimate go-

vernmental aim, the first question

that we must ask of the new propo-

sal is: why. After all, experiences

from other States in India show us

that there are more efficacious and

alternative measures available to

control the growth of population,

including processes aimed at im-

proving public health and access

to education. 

Indeed, the Union Ministry of

Health and Family Welfare con-

ceded as much before the Su-

preme Court late last year.

Through an affidavit filed in court,

the central government argued

that “international experience

shows that any coercion to have a

certain number of children is

counter­productive and leads to

demographic distortions”. The

Government further confirmed

that India was committed to its

obligations under international

law, including the principles con-

tained in the International Confe-

rence on Population and Develop-

ment Programme of Action, 1994. 

Pledge on right

Foremost in those principles was a

pledge from nations that they

would look beyond demographic

targets and focus instead on gua-

ranteeing a right to reproductive

freedom. Since then, in India, the

Supreme Court of India has recog-

nised this right as an inalienable

promise. In  Suchita Srivastava &

Anr vs Chandigarh Administration

(2009), the Court found that a wo-

man’s freedom to make reproduc-

tive decisions is an integral facet of

the right to personal liberty gua-

ranteed by Article 21. “It is impor-

tant,” the Court wrote, “to recog-

nise that reproductive choices can

be exercised to procreate as well

as to abstain from procreating”.

This ruling was endorsed by the

Supreme Court’s nine­judge

Bench verdict in K.S. Puttaswamy

vs Union of India (2017). A reading

of the plurality of opinions there

shows us that the Constitution

sees a person’s autonomy over her

body as an extension of the right to

privacy. In his judgment, Justice

D.Y. Chandrachud held that priva-

cy partakes different connota-

tions. These include decisional au-

tonomy, which comprehends,

among other things, liberty over

“intimate personal choices such as

those governing reproduction”.

Justice S.K. Kaul similarly declared

in his separate judgment that the

right to procreation was an impor-

tant constituent of “the privacy of

the home”. 

Like all other fundamental

rights, the right to privacy is not

boundless. But, as  Puttaswamy

clarifies, any restriction placed on

the right must conform to a doc-

trine of proportionality. This re-

quires first, that the limitation be

rooted in statute; second, that the

state show us that the objective of

its law is founded on a legitimate

governmental aim; third that there

are no alternative and less intru-

sive measures available to achieve

the same objective; and fourth,

that there exists a rational connec-

tion between the limitation im-

posed and the aims of the statute.

The logic here is simple: in pursu-

ing public interest, it is essential

that governments ensure that indi-

vidual liberties are encroached

upon to the lowest degree possi-

ble. A simple reading of U.P.’s draft

law will show us that, if enacted, it

will grossly impinge on the right to

reproductive freedom. The go-

vernment will likely argue that

there is no violation of privacy

here because any decision on ste-

rilisation would be voluntary. But,

as we ought to by now know, mak-

ing welfare conditional is a hall-

mark of coercion. If we want the

idea of India as a welfare state to

mean something, the right to ac-

cess basic goods cannot be made

provisional on a person sacrificing

her bodily autonomy.

By all accounts, therefore, the

proposed law will fall foul of a pro-

portionality analysis. If nothing

else, the Union government’s con-

cession in the Supreme Court de-

monstrates that there are several

alternative, less­intrusive means

available to regulate population. 

Negative consequences

But the new proposal is also wor-

rying because it is likely to bring

with it a host of other deleterious

consequences. 

For instance, an already skewed

sex ratio may be compounded by

families aborting a daughter in the

hope of having a son with a view to

conforming to the two­child

norm. The law could also lead to a

proliferation in sterilisation

camps, a practice that the Su-

preme Court has previously depre-

cated. In Devika Biswas vs Union of

India (2016), the Court pointed to

how these camps invariably have a

disparate impact on minorities

and other vulnerable groups. 

As is so often the case with bad

laws in India, though, this draft Bill

may find support from some past

judgments of the Supreme Court.

In this case, the Government may

point to the judgment in Javed &

Ors vs State of Haryana & Ors

(2003), where the Court upheld a

law that disqualified persons with

more than two children from con-

testing in local body elections. But

not only is the present proposal

far more disproportionate — in

that it virtually sanctions civil

death for those that violate the

norms it fixes — the judgment in

Javed can no longer be seen as

good law.

For one thing, its reasoning flies

in the face of Puttaswamy. But as

rousing as the nine­judge Bench

verdict is, its legacy depends on

how its findings are applied. For

the judgment to have tangible va-

lue and meaning, any law of this

kind, which invades upon our

most personal and ethical choices,

must be seen as repugnant to the

Constitution.

Showing the way out

In what must be a déjà vu moment for outgoing Prime

Minister K.P. Oli and President Bidya Devi Bhandari,

the Supreme Court of Nepal set aside their dissolu-

tion, in May, of the House of Representatives. The apex

court had in February overruled Mr. Oli’s decision to

dissolve the House in December 2020 as well. But this

time, the ruling was more than just a rap on his knuck-

les. The judgment also paved the way for Sher Bahadur

Deuba of the Nepali Congress to be appointed as Prime

Minister after recognising his claim based on signatures

of 149 lawmakers across different parties affirming their

support. The five­member Constitutional Bench also

provided the way out of the unending political dea-

dlock in the House by allowing individual lawmakers to

ignore their party whips during a trust vote that is a

must win for Mr. Deuba. The inability of Mr. Oli and Mr.

Deuba to win trust votes, prior to the dissolution deci-

sion by Ms. Bhandari, was because  the support for

them in the 275­member House divided both the ruling

Communist Party of Nepal (Unified Marxist­Leninist)

(UML) and the Opposition Janata Samajwadi Party ( JSP)

as rebel lawmakers risked suspension. The court’s deci-

sion earlier in the year to de­recognise the merged Ne-

pal Communist Party was another factor too. Mr. Oli

had minority support within the merged NCP, but his

faction retained the endorsement of the bulk of the le-

gislators in the de­merged UML. The rebels, led by Mad-

hav Nepal and Jhala Nath Khanal, were limited to a

smaller faction. The other component of the NCP, the

Communist Party of Nepal (Maoist­Centre), meanwhile

endorsed Mr. Deuba’s candidacy, while the JSP was split

vertically, with the Mahantha Thakur­Rajendra Mahato-

led faction supporting Mr. Oli as opposed to the Babu-

ram Bhattarai­Upendra Yadav­led faction.

It remains to be seen whether the lawmakers will

now vote based on their individual agency with the fear

of suspension gone. There is no guarantee that Mr. Deu-

ba will win a trust vote as he must secure the support of

the rebel factions within the UML and the JSP. The Mad-

hav Nepal­led faction, which has not endorsed Mr. Oli

and welcomed the judgment, has also been a mercurial

force undecided on joining hands with the Opposition

in this new situation. Nevertheless, this is a blow to Mr.

Oli whose brinkmanship and authoritarian tendencies

have come at a difficult time for Nepalis reeling from the

COVID­19 outbreak. It is also a stinging rebuke to Ms.

Bhandari whose actions as President rubber stamping

her former party colleague Mr. Oli’s decisions have

called into question her role as a constitutional func-

tionary. Mr. Deuba has his task cut out, but a firm mes-

sage of unity and consultative governance can bring

about political stability, something that has long eluded

Nepal during both its constitutional monarchy and its

republican periods.